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Contract, Status, and Fiduciary Law$
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Paul B. Miller and Andrew S. Gold

Print publication date: 2016

Print ISBN-13: 9780198779193

Published to Oxford Scholarship Online: January 2017

DOI: 10.1093/acprof:oso/9780198779193.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 03 December 2021

Triangular Torts and Fiduciary Duties

Triangular Torts and Fiduciary Duties

(p.239) 10 Triangular Torts and Fiduciary Duties
Contract, Status, and Fiduciary Law

John CP Goldberg

Benjamin C Zipursky

Oxford University Press

When a professional is negligent in providing services to her client or patient, third parties are sometimes harmed. ‘Triangular torts’ are negligence claims brought against professionals by such third parties. One common example involves a father suing a therapist for inducing his daughter to have false memories of childhood abuse, thereby causing him emotional harm. Another involves a nephew suing a lawyer for incorrectly drafting his aunt’s will, thereby causing him financial loss. Despite the general decline of privity limits on negligence liability, courts frequently reject triangular tort claims, ruling that professionals do not owe duties of care to third parties. In this chapter we explain when such rulings are warranted—and when they are not. The answer turns on whether the recognition of a duty of care to the third party is consistent with the professional’s fiduciary duty of loyalty to the client or patient.

Keywords:   duty, attorneys, clients, false memories, fiduciary, foreseeability, loyalty, malpractice, negligence, recovered memories, physicians, privity, professionals, therapists, therapy, torts, triangular torts

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